from the what's-the-point? dept

A recent Techdirt post reminded us that thanks to its crazy copyright laws, the US won't be seeing anything new in the public domain for many years. But even in those "fortunate" countries that get to use cultural works a mere 70 years after the creator's death, the situation is still pretty absurd.

Ferdinand Joseph LaMothe (‘Jelly Roll Morton’) was famous both for his musical talents and for his rather overconfident nature. His self-promotion as the 'inventor of jazz' has been disparaged by many a musician and critic, yet his considerable accomplishments speak for themselves.

Now, whether or not you accept his claims to be the "inventor" of jazz, there's no denying he was a real pioneer in this new art-form. So it's ridiculous that only now, nearly a century after he made those key contributions, are other musicians allowed legally to take his works and build on them in any way they like.

Fortunately, no one paid much attention to copyright in the early years of jazz, where tunes and chord sequences were routinely shared among musicians for others to explore and extend and then pass on in the same way. Indeed, we wouldn't have the amazing riches of the last hundred years of jazz had they not done so. The recent liberation of 'Jelly Roll' Morton's music from copyright, so long after it was used in precisely the ways that the public domain is supposed to encourage, emphasises the huge gulf between what the law says and what art needs.

from the revisiting dept

Last summer, we wrote about how the National Jazz Museum had acquired a massive collection of old jazz recordings from the 1930s that most didn't even know existed, and how it was being blocked due to copyright. The ABA Journal has now done a more in-depth article about the collection, the copyright issues and the wider problems this represents. It's a really excellent and complete article that touches on a variety of issues from orphan works, state copyright laws pertaining to older sound recordings, copyright extension and the cultural impact of locking up such content:

The collection is, in a word, historic. "It is a wonderful addition to our knowledge of a great period in jazz," says Dan Morgenstern, director of the Institute of Jazz Studies at Rutgers University in Newark, N.J. And, Morgenstern says, "the sound quality of many of these works is amazing. Some of it is of pristine quality. It is a cultural treasure and should be made widely available."

The question, however, is whether that will happen anytime soon. And if it doesn’t, music fans might be justified in putting the blame on copyright law. "The potential copyright liability that could attach to redistribution of these recordings is so large--and, more importantly, so uncertain--that there may never be a public distribution of the recordings," wrote David G. Post, a law professor at Temple University in Philadelphia, on the Volokh Conspiracy blog. "Tracking down all the parties who may have a copyright interest in these performances, and therefore an entitlement to royalty payments (or to enjoining their distribution), is a monumental--and quite possibly an impossible--task."

The museum is rushing to digitize the collection (much of which has deteriorated or was destroyed), but the only way to hear it is to make an appointment at the museum. They insist they're going to try to tackle the copyright issues to release the music, but it's clear that's going to be an incredibly difficult task. What's really unfortunate is how all of these works should be in the public domain, if we just went by what the law said when they were made. Yet, thanks to copyright maximalism, the world and our culture suffers completely unnecessarily.

from the remix-it dept

A few months back we wrote about jazz musician Jason Parker, who was doing a variety of interesting experiments on the business model side, and also making some top notch music (his No More, No Less album has become a regular in my "albums to work to" list...). He's been working on a new project of jazz interpretations of Nick Drake's first album, funded in part via Kickstarter. Of course, lots of albums are being funded via Kickstarter these days, so there was nothing all that special about that (other than that it's a cool idea).

Not thinking about any of this, I sent him some rough mixes of the forthcoming JPQ Nick Drake CD because I respect his ears and wanted to hear what he thought. What I got back was this remix. He cut up our take of "Day Is Done" with Jay-Z's "Can't Knock The Hustle", and lo and behold it was magic! Spek then asked for more mixes, so I sent him all 10 tracks. He cut 'em all up with various Jay-Z tunes and we now have a full remix album, completed before the original tunes. Go figure...

So enjoy this little sneak-peak into not one, but two forthcoming CD’s! You'll get to hear the rest sometime toward the end of March.

There are a few different things to note here. First, it's pretty cool to see just how excited Parker is about all of this. He sent off a work to a friend, who sent back a very cool mashup with a different artist from a different genre and asked for more. Parker happily sent the other tracks over, and now he's thrilled that he's got a full remix/mashup album ready before he's even released his new album. Thankfully, Jay-Z has also made it clear over the years that he isthrilled and "honored" to have his work remixed with others.

Of course, in a very traditional sense, there's an awful lot of "infringement" going on here, but most of the parties are happily ignoring that because they realize that what comes out of it is something really cool. It might not match your personal taste in music, but it's pretty cool to think that three very different artists all end up coming together to create something magical and enjoyable, and part of it happened just because a third party ("Spek") decided to make it happen.

from the missing-the-forest-for-the-trees dept

A bit of a surprise, but the NY Times editorial board has come out in favor of making two specific changes to copyright law, in response to two separate issues recently discussed here. Both are in response to the recent NY Times story (that we discussed) concerning the treasure trove of jazz music that the National Jazz Museum has, but cannot make available due to copyright laws. The first problem is that, thanks to quirks in copyright law (including Congress' strong belief in 1909 that sound recordings could not be covered by copyright, as per the Constitution), sound recordings from before 1972 are locked up for much longer due to state laws. The second issue, discussed over and over again, is the concept of "orphan works." The NY Times figures that if we fixed both of those issues by (1) bringing those older sound recordings under federal law and (2) passing a slightly revised orphan works act, it would allow those jazz classics to be heard again.

While it's nice to see the NY Times editorial board concerned about this, it seems like if they were really serious about fixing copyright law, they wouldn't just focus on this one situation, but the overall issues associated with current copyright law. But, of course, since the newspaper mistakenly thinks it needs strong copyright laws to survive, that seems unlikely.

Mr. Schoenberg said the museum planned to make as much as possible of the Savory collection publicly available at its Harlem home and eventually online. But the copyright status of the recorded material is complicated, which could inhibit plans to share the music. While the museum has title to Mr. Savoryâ€™s discs as physical objects, the same cannot be said of the music on the discs.

"The short answer is that ownership is unclear," said June M. Besek, executive director of the Kernochan Center for Law, Media and the Arts at the Columbia University School of Law. "There was never any arrangement for distribution of copies" in contracts between performers and radio stations in the 1930s, she explained, "because it was never envisioned that there would be such a distribution, so somewhere between the radio station and the band is where the ownership would lay."

At 70 years' remove, however, the bands, and even some of the radio networks that broadcast the performances, no longer exist, and tracking down all the heirs of the individual musicians who played in the orchestras is nearly impossible.

And don't think these works are going into the public domain any time soon either. As we recently noted, sound recordings are locked away for much longer than other copyrighted works due to some quirks in copyright law.

Post uses this as an example of the "high cost of copyright," pointing out that many people who first encounter copyright understand the supposed benefits of the monopoly privilege, but it's more difficult to understand the "cost," side. Of course, I'd argue that this is more a problem of the fact that people have been taught to believe that copyright is designed to "protect the creator," rather than the much more accurate fact that it's supposed to provide for the public. The fact that copyright law is quite clearly getting in the way of this, the intended purpose of the law, suggests that such restrictions are not, in fact, legal. This is a clear case where such a copyright restriction is not "promoting the progress," at all, and in fact hindering our access to important cultural works -- perhaps forever.

from the play-it-again dept

We recently wrote about Daniel Pink's new book Drive and how there are some situations where money is not just the wrong motivator for creativity, but it can actually harm creativity. While some in the comments falsely interpreted that to mean money is never a motivator or that it somehow means everyone should give up their money, others did have many thoughtful responses. That discussion got Ray Dowd, a copyright litigator in New York, thinking about a variety of topics related to motivation and copyright, noting that if the key point of copyright is to create incentives for creativity, the studies covered by Drive certainly should be an important part of the larger discussion.

From there, he goes through a variety of situations where copyright is clearly harming creativity, rather than helping it, including a discussion on the bizarre notion that satire cannot be fair use, but parody can be. However, where it gets most interesting, is when he discusses how copyright, and the more recent draconian enforcement of copyright law, is having a massively negative impact on jazz and jazz musicians:

When the Copyright Society had its convention in New Orleans a few years back, I was struck by the plight of Jazz musicians: they didn't have the right to a compulsory license. So a bunch of white kids doing an exact cover of a Led Zep tune can force Led Zep to license the song at a cheap rate.

But Jazz - which remixes, rearranges and is an art form that is derivative - can't get a compulsory license, and the changes and modifications to the original can't be protected without an additional license from the copyright owner - even though a sound recording in a cover song can.

According to the jazz musicians, the licensing practices of copyright owners have put them out of making a living and basically strangled their creativity. It was a heartbreaking presentation. Jazz and its successors which rely on sampling, borrowing, remixing - all activities emanating from African-American traditions - have been severely penalized, to the point of practical extinction.

That's a clear, concrete (and, as a jazz fan, depressing) example of an area in which copyright is clearly doing the exact opposite of its intended purpose. I'm really curious to hear from defenders of the copyright status quo (or who believe in even stronger copyright protections) to see how they defend this situation. I'm also reminded, yet again, of James Boyle's excellent chapter on how soul music owes its very existence to the fact that copyright laws weren't enforced that strongly a few decades back (and, the laws themselves weren't nearly as limiting).

In the face of increasing examples of such copyright policies doing exactly the opposite of what they intend, how is it that our elected officials continue to buy the claims from a few entrenched industries, that copyright needs to be made even more strict? How many more musicians have to have their art and creativity stifled?